WARNING
The court hearing this matter directs that the following notice be attached to the file:
A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:
486.4 Order restricting publication — sexual offences.
(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of
(a) any of the following offences:
(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,
(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or
(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or
(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i) to (iii).
(2) Mandatory order on application. — In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall
(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and
(b) on application made by the complainant, the prosecutor or any such witness, make the order.
486.6 Offence.
(1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
Court Information
Ontario Court of Justice
Between:
Her Majesty the Queen
-and-
R.M.D.
Before: Justice M. Edward Graham
Heard on: February 6, February 26, April 17, 2013
Judgment: June 27, 2013
Counsel:
Mr. M. Carnegie — for the Crown
Mr. G. Negro — for the Defendant R.M.D.
Judgment
Graham, J.
Introduction
1This is judgment in the matter of R v. R.M.D.
2R.M.D. is charged with the offences of sexual assault, invitation to sexual touching and sexual touching in relation to D.P. At trial the Information was amended to broaden the scope of the dates of the alleged offences to correspond with the evidence.
ONUS
3This charge is a Criminal Code offence and as with all Criminal Code offences the onus is upon the Crown, on the totality of the evidence, to prove the offence beyond a reasonable doubt in order for the accused to be found guilty of the offence charged.
REASONABLE DOUBT
4The Supreme Court of Canada has commented on the principle of proof beyond a reasonable doubt in several cases.
5In R. v. Lifchus (1997) 1997 CanLII 319 (SCC), 118 C.C.C.(3d) 1 at para 24, Cory J stated:
Ordinarily even the most important decision of a lifetime are based upon carefully calculated risks. They are made on the assumption that certain events will in all likelihood take place or that certain facts are in all probability true. Yet to invite jurors to apply to a criminal trial the standard of proof used for even the important decisions in life runs the risk of significantly reducing the standard to which the prosecution must be held.
6Later on in the Lifchus case the Supreme Court of Canada held that the meaning of proof beyond a reasonable doubt is as follows: the standard of proof is higher than… a balance of probabilities yet less than proof to an absolute certainty.
7In R. v. Starr (2000) 2000 SCC 40 (CanLII), 147 CCC(3d) 449, the Supreme Court of Canada indicated that in order to convict, something less than absolute certainty and something more than probable guilt is required. The Court further defined the reasonable doubt standard by explaining that it falls much closer to absolute certainty than to proof on a balance of probabilities.
ASSESSMENT OF THE EVIDENCE
8In R. v. Menard [1998] 2 S.C.R. the Supreme Court of Canada noted that:
that the standard of proof beyond a reasonable doubt applies only to the jury's final evaluation of guilt or innocence and is not to be applied piecemeal to individual items or categories of evidence: see R. v. Morin, 1988 CanLII 8 (SCC), [1988] 2 S.C.R. 345.
9In R. v. Morin 1988 CanLII 8 (SCC), [1988] 2 S.C.R. 345, the Supreme Court of Canada noted the following at paragraphs 28, 33, 41, and 42 respectively:
- The appellant submits, citing R. v. Challice (1979), 1979 CanLII 2969 (ON CA), 45 C.C.C. (2d) 546 (Ont. C.A.), that different considerations apply where the credibility of defence evidence is at issue. In such cases the argument is that the defence evidence does not have to be believed but "only has to raise a reasonable doubt". That does not mean, however, that the defence evidence or the evidence which it contradicts or explains is to be examined piecemeal. The judgment of Morden J.A. in Challice, supra, which the appellant agrees expresses the traditional view and is consistent with the judgment of this Court in Nadeau v. The Queen, 1984 CanLII 28 (SCC), [1984] 2 S.C.R. 570, and R. v. Thatcher, 1987 CanLII 53 (SCC), [1987] 1 S.C.R. 652, correctly states the law in the following passage (at p. 557):
Understandably, a jury have to give careful consideration to issues of credibility when deliberating upon their verdict, and with respect to various pieces of evidence they may have differing views: total acceptance, total rejection, or something in between. An effective and desirable way of recognizing this necessary part of the process, and putting it to the jury in a way that accurately comports with their duty respecting the burden and standard of proof, is to instruct the jury that it is not necessary for them to believe the defence evidence on a vital issue -- but that it is sufficient if it, viewed in the context of all the evidence, leaves them in a state of reasonable doubt as to the accused's guilt: see R. v. Lobell, [1957] 1 Q.B. 547 at p. 551, per Lord Goddard, C.J. [Emphasis added.]
The authorities reviewed above are clear that the jury is not to examine the evidence piecemeal by reference to the criminal standard.
The reason we have juries is so that lay persons and not lawyers decide the facts. To inject into the process artificial legal rules with respect to the natural human activity of deliberation and decision would tend to detract from the value of the jury system. Accordingly, it is wrong for a trial judge to lay down additional rules for the weighing of the evidence. Indeed, it is unwise to attempt to elaborate on the basic requirement referred to above. I would make two exceptions. The jury should be told that the facts are not to be examined separately and in isolation with reference to the criminal standard. This instruction is a necessary corollary to the basic rule referred to above. Without it there is some danger that a jury might conclude that the requirement that each issue or element of the offence be proved beyond a reasonable doubt demands that individual items of evidence be so proved.
The second exception is that it is appropriate where issues of credibility arise between the evidence for the prosecution and the defence that the jury be charged as suggested by Morden J.A. in Challice, supra. There is a danger in such a situation that a jury might conclude that it is simply a matter as to which side they believe. The suggested charge alerts them to the fact that, if the defence evidence leaves them in a state of doubt after considering it in the context of the whole of the evidence, then they are to acquit.
R. v. W.(D.)
10In assessing the evidence, and in particular the credibility of the accused I have considered the direction provided by the Supreme Court of Canada in R. v. W.(D.) (1991) 1991 CanLII 93 (SCC), 63 C.C.C.(3d) 397. The Supreme Court of Canada has clearly indicated that in cases where the credibility of the accused is a fundamental issue that the rule of reasonable doubt applies to that issue. At page 409 of that decision the Supreme Court of Canada provided the following instruction to judges:
First if the trial judge believes the evidence of the accused, the accused must be acquitted.
Second, if the trial judge does not believe the evidence of the accused but is left in reasonable doubt by it, the accused must be acquitted.
Third, even if the trial judge is not left in doubt by the evidence of the accused, the trial judge must still decide, whether the guilt of the accused has been established beyond a reasonable doubt on the whole of the evidence.
11Time and again, the Supreme Court of Canada and the Ontario Court of Appeal have made it clear that the court's verdict should not be based on a choice between the accused's and Crown's evidence, but on whether, based on the whole of the evidence, the court is left with a reasonable doubt as to the accused's guilt (R. v. Challice (1979) 1979 CanLII 2969 (ON CA), 45 C.C.C.(2d) 546 (Ont. C.A.) at pp 556-57; [R. v. MacKenzie (1993] 1993 CanLII 149 (SCC), 1 S.C.R. 212 at pp. 219 and 240](https://www.minicounsel.ca/scc/1993/149), R v. P.(A) [2013] OJ No 344 (CA)).
12As Fish J.A. noted in dissent in R. v. Levasseur (1994) 1994 CanLII 5490 (QC CA), 89 C.C.C.(3d) 508 (Que. C.A.) at p. 532, in language approved by the Supreme Court (1994 CanLII 74 (SCC), [1994] 3 S.C.R. 518):
The trial judge must make it indisputably clear to the jury that reaching a verdict is not simply a question of choosing the more believable of two competing stories…to protect the innocent form conviction, we require proof beyond a reasonable doubt. The application of this standard to questions of credibility is an entrenched part of our law. The direction most consonant with this principle is a clear and specific instruction, where credibility is an important issue, that the jury must apply to it the test of reasonable doubt.
13It must be made indisputably clear that in reaching a verdict it is not simply a question of choosing the more believable of the two competing stories. Proof beyond a reasonable doubt is required. The application of this standard to questions of credibility is an entrenched part of Canadian law.
14The Court's decision in a criminal trial is not a question of which of the two parties should be believed, or which party is more believable, or which party is more credible or of choosing the more likely version of events. This is a Criminal Code charge and the burden of proof is on the Crown to establish the guilt of the accused beyond a reasonable doubt in order for the accused to be found guilty. The standard of proof in a criminal case requires a degree of proof far greater than that required for everyday decision making and is one that is closer to absolute certainty than to a balance of probabilities.
15In this regard it is important to note that it is well settled that in order for any evidence to raise a reasonable doubt it does not have to be "accepted". It would be an error for a trier of fact, having gone through the first two steps in W.(D.), and having rejected the evidence of the accused, to thereafter only consider evidence that it accepted in determining whether there is a reasonable doubt: (R. v. Miller (1991) 1991 CanLII 2704 (ON CA), 68 C.C.C.(3d) 517 (Ont. C.A.); R. v. Tutty [1994] O.J. No. 411(C.A.); R. v. Campbell (1995) 1995 CanLII 656 (ON CA), 24O.R.(3d) 537 (C.A.)).
16In order for the Crown to succeed the evidence upon which it relies must be accepted. For the accused to succeed, it is not necessary that the evidence upon which he or she relies must also be accepted. It is important to recognize that a reasonable doubt may arise from the balance of the evidence, even if it is not positively believed.
Child Witnesses
17In R. v. B.(G.) 1990 CanLII 7308 (SCC), [1990] 2 S.C.R. 30 Madam Justice Wilson stated as follows:
48 Dealing first with Wakeling J.A.'s comments regarding the credibility of child witnesses it seems to me that he was simply suggesting that the judiciary should take a common sense approach when dealing with the testimony of young children and not impose the same exacting standard on them as it does on adults. However, this is not to say that the courts should not carefully assess the credibility of child witnesses and I do not read his reasons as suggesting that the standard of proof must be lowered when dealing with children as the appellants submit. Rather, he was expressing concern that a flaw, such as a contradiction, in a child's testimony should not be given the same effect as a similar flaw in the testimony of an adult. I think his concern is well founded and his comments entirely appropriate. While children may not be able to recount precise details and communicate the when and where of an event with exactitude, this does not mean that they have misconceived what happened to them and who did it. In recent years we have adopted a much more benign attitude to children's evidence, lessening the strict standards of oath taking and corroboration, and I believe that this is a desirable development. The credibility of every witness who testifies before the courts must, of course, be carefully assessed but the standard of the "reasonable adult" is not necessarily appropriate in assessing the credibility of young children.
18In another decision of the Supreme Court R. v. R.W. 1992 CanLII 56 (SCC), [1992] 2 S.C.R. 122, Madam Justice McLachlin writing for the Court stated:
23 Before turning to the particular errors alleged, I pause to consider the general question of how courts should approach the evidence of young children. The law affecting the evidence of children has undergone two major changes in recent years. The first is removal of the notion, found at common law and codified in legislation, that the evidence of children was inherently unreliable and therefore to be treated with special caution. Thus, for example, the requirement that a child's evidence be corroborated has been removed: s. 586 of the Criminal Code, R.S.C. 1970, c. C-34, which prohibited the conviction of a person on the uncorroborated evidence of a child testifying unsworn, was repealed by An Act to amend the Criminal Code and the Canada Evidence Act, S.C. 1987, c. 24, s. 15, effective January 1, 1988. Similar provisions of the Canada Evidence Act, R.S.C. 1970, c. E-10, and Young Offenders Act, S.C. 1980-81-82-83, c. 110, have also been eliminated. The repeal of provisions creating a legal requirement that children's evidence be corroborated does not prevent the judge or jury from treating a child's evidence with caution where such caution is merited in the circumstances of the case. But it does revoke the assumption formerly applied to all evidence of children, often unjustly, that children's evidence is always less reliable than the evidence of adults. So if a court proceeds to discount a child's evidence automatically, without regard to the circumstances of the particular case, it will have fallen into an error.
24 The second change in the attitude of the law toward the evidence of children in recent years is a new appreciation that it may be wrong to apply adult tests for credibility to the evidence of children. One finds emerging a new sensitivity to the peculiar perspectives of children. Since children may experience the world differently from adults, it is hardly surprising that details important to adults, like time and place, may be missing from their recollection. Wilson J. recognized this in R. v. B. (G.), 1990 CanLII 7308 (SCC), [1990] 2 S.C.R. 30, at pp. 54-55, when, in referring to submissions regarding the court of appeal judge's treatment of the evidence of the complainant, she said that
... it seems to me that he was simply suggesting that the judiciary should take a common sense approach when dealing with the testimony of young children and not impose the same exacting standard on them as it does on adults. However, this is not to say that the courts should not carefully assess the credibility of child witnesses and I do not read his reasons as suggesting that the standard of proof must be lowered when dealing with children as the appellants submit. Rather, he was expressing concern that a flaw, such as a contradiction, in a child's testimony should not be given the same effect as a similar flaw in the testimony of an adult. I think his concern is well founded and his comments entirely appropriate. While children may not be able to recount precise details and communicate the when and where of an event with exactitude, this does not mean that they have misconceived what happened to them and who did it. In recent years we have adopted a much more benign attitude to children's evidence, lessening the strict standards of oath taking and corroboration, and I believe that this is a desirable development. The credibility of every witness who testifies before the courts must, of course, be carefully assessed but the standard of the "reasonable adult" is not necessarily appropriate in assessing the credibility of young children.
25 As Wilson J. emphasized in B. (G.), these changes in the way the courts look at the evidence of children do not mean that the evidence of children should not be subject to the same standard of proof as the evidence of adult witnesses in criminal cases. Protecting the liberty of the accused and guarding against the injustice of the conviction of an innocent person require a solid foundation for a verdict of guilt, whether the complainant be an adult or a child. What the changes do mean is that we approach the evidence of children not from the perspective of rigid stereotypes, but on what Wilson J. called a "common sense" basis, taking into account the strengths and weaknesses which characterize the evidence offered in the particular case.
26 It is neither desirable nor possible to state hard and fast rules as to when a witness's evidence should be assessed by reference to "adult" or "child" standards -- to do so would be to create anew stereotypes potentially as rigid and unjust as those which the recent developments in the law's approach to children's evidence have been designed to dispel. Every person giving testimony in court, of whatever age, is an individual, whose credibility and evidence must be assessed by reference to criteria appropriate to her mental development, understanding and ability to communicate. But I would add this. In general, where an adult is testifying as to events which occurred when she was a child, her credibility should be assessed according to criteria applicable to her as an adult witness. Yet with regard to her evidence pertaining to events which occurred in childhood, the presence of inconsistencies, particularly as to peripheral matters such as time and location, should be considered in the context of the age of the witness at the time of the events to which she is testifying.
19The complainant in this matter was a child at the time of the alleged incident. As such her evidence is to be evaluated in light of the principles mentioned above.
GENERAL OVERVIEW OF THE FACTS
20It is important to consider carefully, and with an open mind, all the evidence presented during the trial. I will decide how much or little to believe and to rely upon any witness. I may believe some, none or all of it.
Crown Evidence of D.P.
21D.P. is now 16 years old. She provided some family background information, her dad is R.P. Her mom is M.S. Her mom lives in London and her dad resides in Woodstock. Her parents are no longer married and have not been for a long time. She has seen her dad on weekend access visits which took place in Woodstock. Her dad has a girlfriend, D.C.1. The Defendant, who is commonly referred to as R.M.D., is the son of her father's ex-wife. Her name is M.E.
22She recalls visiting M.E.'s house in Woodstock on many occasions during access times with her dad. R.M.D. lived there as well along with his two younger children.
23She talked about one specific visit when she was 11 or 12. She is not sure of the time of year or which year. She was wearing capris and a tank top with a bra and underwear. She can't recall the colours. She knows she never went back after this last visit.
24Her dad was building a backyard fence for M.E. The house itself was one level with a living room, kitchen and two bedrooms. There was a basement which had a laundry room and a bedroom but she could not recall if it was fully finished or not.
25She cannot recall what time they got there but it was daytime. Besides R.M.D. and his mom M.E. there were also R.M.D.'s two younger children.
26When they got there she sat down and watched TV in the living room with R.M.D. His two kids were playing somewhere in the house. M.E. and her dad were outside in backyard presumably discussing the fence project.
27She can't recall what TV shows they were watching or what R.M.D. was wearing. R.M.D. asked her to do him a favour but didn't say what it was. He then said, "Follow me".
28She followed R.M.D. to the basement. They went into a bedroom. On the right was a bed and beside that there was a window and a closet was on the left side. He told her to shut the window. She stood on the bed faced the window, reached up and closed it.
29R.M.D. was behind her. While she was standing on the bed, he ran his hand on her breasts and down to her thighs. She was scared. She asked him what he was doing and then stepped off the bed.
30He said, "I heard you are good at giving blow jobs. Will you give me one"? She said no.
31He then said "if you tell anyone you are going to get it back". She took this as a threat. She made up a lie and told him that her dad needed a pop.
32She went upstairs to the kitchen. She didn't see anyone in the immediate area. She got a soft drink, went outside and gave it to her father. She can't recall what happened outside or any other details about the rest of the day. She stayed there until her dad wanted to go home.
33The next day her dad went back to work on the fence. She did not go with him. She testified that she told D.C.1 that R.M.D. asked for a blow job. She could not recall anything else she said in that conversation. She also repeated the story to her dad when he got home from work. He told her not to tell her mom about it. [this evidence introduced not for the truth of its contents]
34After the access visit D.P. returned to her mother's house. She didn't tell her mom, partly due to what dad said but she also thought her mom would think of her differently and would be embarrassed. She also thought her mom would blame her for what happened. She never returned to R.M.D.'s residence.
35Nothing more was said about the incident until 2012 when she came home from school one day and her mom was on the phone with D.C.1. Her mom asked her if she knew someone named R.M.D. D.P. she started to cry. The police were then called.
Cross-examination
36D.P. believes she was seven years old when she first visited M.E.'s house. She had been there quite often before the incident. She disagreed with the suggestion that R.M.D. was rarely present or that the day of the incident was the first time she had ever interacted with him. She said that during her visits she would often sit on the couch and watch TV with him. Her dad did not always remain for these visits as he would sometimes just drop her off.
37She agreed that she was uncertain of when the incident took place but believed she was 11 or 12 at the time. She was vague and uncertain in providing any more details.
38She confirmed that she liked M.E. and had a close relationship with her. She had no difficulty in confiding in her. However she never talked to M.E. about this incident with R.M.D. even on the day it happened. She was not aware of any situation which may have caused her to have a specific animus against either M.E. or R.M.D.
39She agreed that M.E.'s house was quite small. Several pictures of the interior were introduced some of which depict an open stairway leading from the kitchen/dining area into the basement. All of the principal rooms were on the main floor and in close proximity to one another.
40She had been in the basement before. She had never been told by M.E. not to go down there, however. She could give few details of its condition at the time of the incident.
41She disagreed with the suggestion that she never went to the basement with R.M.D. She was uncertain as to how long she was down there but it was less than ten minutes. She agreed that she had told police that he had touched her for one minute at the most.
42She confirmed that he started touching her breasts and continued down to her thighs. However she was confronted with her statement to police where she claimed that he had started at her thighs and moved his hands upwards to her breasts. She could not explain the inconsistency and stated that the incident did take place.
43She did go outside to see her dad. She knew he was building the fence but she could not recall what stage they were at; for example whether they were digging post holes or not. She disagreed with the suggestion that R.M.D. spent most of the day outside helping her father. Instead she remembers M.E. spending most of the day outside. R.M.D.'s children were in their rooms but M.E. did not spend her time looking after them.
44She disagreed with the suggestion that when she went outside to give her dad a pop she disclosed to him that R.M.D. had said something to her. She said this did not happen until the next day. She could recall few if any details of the rest of the day's events.
45It was suggested to her that she only told her father that R.M.D. had said something to her. She disagreed and stated that she had disclosed that R.M.D. had touched her and asked her for a blow job. Counsel suggested her dad asked her if he had threatened her at all and she told him he hadn't. She said he never asked her that question. She also disagreed with the suggestion that she never told her dad that R.M.D. said he would get her back. She reiterated that her dad had told her not to tell her mom.
46She was able to provide few further details about the events surrounding the involvement of the police. There was a family discussion at one stage. She did not recall the conversation. For example she could not remember if she told her dad that R.M.D. had not touched her buttocks. She did tell him that R.M.D. touched her breasts. She denied that her dad asked her if R.M.D. had touched her vagina.
D.C.1
47D.C.1 was dating D.P.'s father, R.P., at the time of the fence building project. She believed that D.P. was between 10 and 12 years old. D.P. was visiting on a weekend pursuant to an access arrangement.
48R.P. took D.P. with him to M.E.'s residence. Upon their return home D.P. said she didn't want to go back.
49D.P. did not return to the residence the next day. She was mad at her father as he hadn't listened to her. D.C.1 asked what was wrong. D.P. revealed that R.M.D. said "I heard you were good at giving blow jobs". She told D.P. to tell her mom and dad. Her dad came home and she repeated the same comment to him. They decided that D.P. would never return to M.E.'s house. She never spoke to M.E. or R.M.D. about the allegations. To her knowledge, D.P. did not tell her mother immediately.
50She agreed that she did not mention the incident to D.P.'s mother, until just before charges were laid in the spring of 2012. One day she was on the phone with M.S. and simply had asked if anything had happened about the incident. D.P. and her mother did come to Woodstock after the police were contacted and she believes they spoke with R.P. However she was not present for that conversation.
51D.C.1 was asked to clarify the disclosure D.P. had made to her the day after the incident. In her statement to police she left the impression that R.M.D. had directly asked D.P. for oral sex.
Cross-Examination
52D.C.1 confirmed that D.P. had never confided that R.M.D. in fact also touched her. The only revelation concerned the comment in respect of oral sex. D.P. was mad at her father as he had not listened to her and she did not want to go back to M.E.'s house. She understood that D.P. had said something to her dad while at that residence.
M.S.
53M.S. is the complainant's mother. She testified that in the spring of 2012 she was speaking on the phone with D.C.1. D.C.1 mentioned that something had happened to D.P. at M.E.'s house and that she should follow up. She could not recall the specifics of the conversation. M.S. confronted D.P. when she returned home from school. The incident was later reported to police.
Cross-Examination
54She confirmed that prior to speaking to D.C.1 she had no idea about the allegations involving R.M.D.
55She agreed that her daughter would have known as far back as 2008 about how to respond if someone said or did anything inappropriate to her.
R.P.
56R.P. is D.P.'s father. He confirmed that although D.P. lived in London with her mother, she would visit him on London on a regular basis. He was living with D.C.1.
57He discussed his relationship with M.E., the mother of the Defendant. He had been married to her. R.M.D. was her son from another relationship. He still visited her to help her with maintaining her residence. He would sometimes bring D.P. with him.
58On one occasion D.P. accompanied him when he was building a fence for M.E. He was uncertain which year it was but believes it was a weekend. He believes D.P. would have been about 12 years old at the time. R.M.D. was there as well. R.M.D.'s two young children were also present.
59Upon their arrival he started working on the fence. M.E. was with him for quite a while showing him what needed to be done. D.P. had come out as well. He recalls D.P. going back inside to get warm after about a half hour. However she came out again about ten minutes later and said she had to make an excuse to R.M.D. to give her dad a drink. [This utterance admitted not for its truth] She also mentioned that R.M.D. had said something to her but she didn't elaborate other than saying she didn't like what he said. He just told her to stay outside. He didn't think anything of it as R.M.D. tended to joke around.
60As far as he can recall R.M.D.'s children were outside and M.E. was in the garage. The only person who stayed inside was R.M.D. R.M.D. did not help him build the fence.
61They remained for the day and returned to his apartment later that night. His daughter was with him for the whole weekend so he expected both of them to return to the E. house the following day.
62D.C.1 told him that D.P. did not want to go back so he returned there alone. When he returned home that night D.C.1 said that R.M.D. had said something to D.P. the previous day. He did not speak to D.P. about it. He also did not tell M.S. and simply dealt with it by ensuring that D.P. never returned to R.M.D.'s residence.
63It was not until the spring of 2012 that he found out more details. D.P. and M.S. visited Woodstock and they discussed the incident. He asked D.P. what had happened. [This conversation introduced for the narrative and not for its truth]. D.P. seemed hesitant at first but then said that R.M.D. had put his hands on her shoulders and then proceeded slowly down her side to her waist and thighs. She demonstrated this by moving her hands on his shoulders and moving them down in an "hourglass" motion. R.M.D. said that he had heard that she gave good blow jobs. R.P. asked her if R.M.D. put his hands on her vagina and she replied no. D.P. said that R.M.D. did not touch her butt or breasts.
64D.P. appeared nervous and embarrassed and it was his impression that she did not want to say too much. In retrospect he recalls his daughter as being scared at M.E.'s house when she came outside the house and did not want to go back in. He never talks about these sorts of subjects with his kids so he was surprised and shocked by this revelation.
Cross-Examination
65On the date of the incident he was focussed on one side of the property. It was his recollection that the fence post holes had been prepared prior to that day.
66M.E. was outside most of the time although she did not actively participate in building the fence. R.M.D. did not help at all that day. The kids were outside as well.
67At one point while at the residence D.P. did tell him that R.M.D. had said something to her. He did not ask her if R.M.D. had threatened her at the time but did ask her this in 2012 and she did say that R.M.D. had told her he would get her.
68He was confronted with his statement he gave to the police on May 30, 2012. He agreed that in that statement there is no mention that D.P. ran up to him and said she used the pop as an excuse to get out of the house. He recalled this detail later though.
69It was also pointed out to him that in his statement to police he indicated that he did ask D.P. while at M.E.'s house if she had been threatened by R.M.D. and she hadn't elaborated. He responded that he did not ask her then, just that he knew something had been said to her. He only asked her this question in May 2012. Later in his evidence though he agreed that he did in fact ask her on the day of the fence building if she had been threatened.
70He agreed that if someone was sitting in the kitchen they would have an unobstructed view of anyone entering the basement via the open stairwell as depicted in the photographs which were introduced as exhibits.
71Counsel questioned the witness about a conversation he had with M.E. where he relayed certain information to her. Crown counsel objected to this question. The witness denied any such conversation took place.
72The Crown closed its case.
R.M.D.
73The Defendant is 38 years old. His middle name is R.M.D. He has resided in Woodstock with his mother and his two children for several years. He is 38 now.
74He helps his mom deliver mail. She gives him some money for this. He is also on ODSP for a speech and learning disability. He stutters and cannot pronounce some words correctly. He also has difficulty recalling dates and times.
75When he was younger he was convicted of several criminal offences; in 1991 as a youth he received one year probation for attempt theft under. In 1993 he served two months in jail and two years' probation for a sexual assault. In 1996 he was convicted of impaired driving and received a fine. In February 2000 he also received a fine for public mischief and mischief.
76He is not sure if he had much contact with D.P. previously but does recall first meeting her when she was about five years old. R.P. would bring her over when he came to talk to his mom or help her with various tasks. He is not sure of the number of times he met her.
77He was asked about his involvement in building a fence at his mother's residence. This occurred over a one or two day period. He recalls helping R.P. dig post holes. They kept encountering rocks so they had to use an auger to finish the holes, put the posts in, and then fill them with cement. He cannot remember if D.P. was present.
78It might have been the same day or the next day that they measured out distances and cut the boards for the rest of the fence. Once they were done he simply recalls going inside and watching TV. He knows his children were home and his mother was looking after them.
79He never went in the basement with D.P. He never touched her and never asked her for sexual acts. No one ever approached him about any alleged comments he made. He is confused why she is making these allegations as they never happened.
80He has had no contact with R.P., M.S. or D.P. since the building of the fence.
81He described the basement of the residence. It was unfinished. There was no bedroom. The room that could have been used for that purpose was filled with boxes. There was a mattress but it was leaning against a wall.
Cross-examination
82He confirmed that his disability makes it difficult for him to provide dates and times. However he can say that he does recall being directly involved for the entire process of building the fence. He helped R.P. the entire time he was there, whether it was one day or over several days. However, he cannot be more specific other than he was involved in digging the holes, putting in the posts and pouring the cement. He also could not tell how many days he helped.
83He said he was also able to recall that his mother was inside the entire time looking after the children. She never came outside. This was the case on each day he built the fence. He agreed that there was nothing special about the fence building project that would have caused him to remember it.
84He did recall speaking to the police May 31 2012. He agreed that he told the police then that he could not remember if his mother was home. When confronted with this inconsistency he testified that after his release from custody he called his mom and explained what was going on and she reminded him that she had been there when the fence was being built.
85He also agreed that he told the police that he was not even certain that his own children had been born at the time the fence was built. His mother had assisted him. She gave him some details and he still doesn't recall other things, He just recalls helping R.P. build the fence.
86He disagreed with the suggestion that at best, he only he only worked on the fence on one day, not both. He replied that he knows he helped R.P. build the fence and his mom was not outside.
87He was asked if his mom helped him with the details about using the auger. He was confronted with his statement to police wherein he said that all he did was hold wood. He testified that he gave no further details as the officer didn't ask for any.
88Ultimately it was suggested to him that all he could really remember was that R.M.D. had come to house and built a fence and that he helped him. He agreed that this was a fair summary.
89He described the living arrangements in the residence. His mom has one bedroom and his children sleep in the other. He has to sleep on the couch in the living room. He was asked why he did not sleep in the basement where there was a perfectly good mattress. He said that room was filled with boxes and that he preferred to sleep near his children as he preferred knowing that they were safe. He has been sleeping on the couch for several years.
90He agreed that he had very limited awareness of D.P. ever being at the residence. He could not recall any conversations with her. He never told her about the mattress in the basement, windows or other details.
M.E.
91She is the mother of the Defendant. At the time of the alleged incident he was living with her. His children live with them too. She had her own bedroom and the two children stayed in the other bedroom. R.M.D. slept on the couch from the time he came there until he was forced to leave due to his arrest. However there was one period from February 2010 to October 2010 when he lived in the open portion of the basement with his girlfriend.
92She described the layout of the premises. An open stairway, visible from the kitchen and dining area, led to the basement. In the basement in 2006 was a two piece bathroom, an open area, utility room and a room she described as a junk room full of "stuff". This room had a window and an old box spring propped against a wall but it was otherwise full of boxes. The walls of that room were finished. It was not used as a bedroom. R.M.D. and his girlfriend had stayed in the unfinished open area.
93She stated that R.M.D. does not work as he is on a pension due to a learning disability. He has difficulty expressing himself. She delivers mail for Canada Post. On a typical day she would go to work and he would look after his children. Sometimes he would help her on her mail route but she would not pay him for this.
94She has had very limited contact with D.P. and perhaps ran into them when D.P. was about five years old. On another occasion R.P. did visit to talk to her about a personal issue. R.M.D. was out with his friends for coffee. D.P. and the kids just went downstairs to the basement. A couple of years after the fence building project R.P., D.P. and D.C.2 dropped off some presents at Christmas time. She can't recall R.M.D. being there. No one ever complained to her about R.M.D.'s alleged behaviour.
95She remembers asking her former husband, R.P., to build a fence in her backyard. He had helped her several times with projects since their divorce several years earlier. She knows this took place in June and July 2006 as she still had the receipts for the building materials. He would have begun the project on June 3.
96R.P. had been to her home several times to work on the fence. He brought D.P. with him on one of those days. It didn't bother her as D.P. could play with the other children. He worked on the gates she wanted installed on the deck.
97R.M.D. helped R.P. build the fence. She spent most of her time in the kitchen reading. She had a good view of the deck. The children were either in the living room or the bedroom. She sometimes checked on them. At one point she did step outside to talk to the men about their progress. No one went into the basement as she was sitting in direct view of the stairs. R.M.D. would sometimes come in briefly to go to the bathroom or get some pop from the fridge and then return outside.
98She did speak to R.M.D. at one point. A voir dire was held with respect to this conversation. She would state that as a result of this conversation she kept a closer watch on D.P. I ruled that the evidence would not be introduced. As I will state more fully later I find that no such conversation ever took place.
Cross-Examination
99She advised that she first learned of the charges the day her son was arrested.
100She spoke to R.M.D. after he spoke to police about the allegations. She agreed she discussed it and told him what she remembered. She told him that she remembered R.P. and D.P. were there. She initially said she didn't tell him specifics. She did not have to mention that she was there as he would have known this. She suggested that the Crown was trying to confuse her with this line of questioning. She then modified her answer and admitted telling R.M.D. that she was at the house all day so nothing could have happened. She did not tell him where in the house she was. She initially denied talking to him about his own actions that day. It is possible though that she reminded him that he was outside the entire time except for bathroom and beverage breaks, beverage breaks and dinner.
101She did not provide a statement to police. No one had asked her and although the charges were serious she did not think there was any merit to them.
102She confirmed that it took several days to build the deck. On the day D.P. was there the principal work involved building gates on the deck to prevent the children from falling down the steps.
103Other than checking on the children and going out once to talk to Rick she sat at the kitchen table the entire day. R.M.D. only came in for bathroom breaks and to get some pop to drink although she could provide no details as to how often this happened.
104It was a normal day seven years ago so she had no reason to memorize every detail. She just knows her own movements were limited. She cannot recall what the children ate for lunch. She does remember that R.M.D. did not come in for lunch. It is possible the children watched TV but she could not recall which shows they saw. At this point D.P. would have been 8 or 9 years old while the grandchildren were 4 and 3. She said the children played together all day. D.P. may have run outside a few times to see her dad but she has no clear recollection of this. She knows D.P. did not go to the basement but can't explain why she has no memory of whether D.P. went outside.
105The Crown explored the issue of the configuration of the basement. Even though her son lived there for several months in 2010 the panelled room was not used. She confirmed that the box-spring in that room belonged to her son. In fact he had used that room as a bedroom for several years in the 1990s.
106She emphasized that she had very limited contact with D.P. prior to the fence building visit. She had no personal animosity towards her.
Submissions
107Mr. Negro acknowledged that the Defendant's evidence was not detailed but this could be explained by cognitive impairment. Nevertheless the Defendant denied any incident had taken place. It is difficult to ask someone to provide details about an incident they deny ever took place in circumstances they would have no reason to remember.
108He described the complainant's evidence as vague and inconsistent. She described the sexual touching one way to the police and as having happened differently while giving her evidence. She was also inconsistent in describing to other witnesses the words, if any uttered by the Defendant.
109She described the basement with some degree of accuracy. She had been there before however. M.E., the Defendant's mother, was in a position to observe the children and the open stairway that led to the basement. She was unshaken in her assertion that D.P. never went down into the basement on the date of the alleged incident.
110As a consequence, he argued that the Crown's case is based in unreliable and non-credible evidence which lead to the conclusion that the case has not been proven beyond a reasonable doubt.
111Mr. Carnegie for the Crown argued that the Defendant's evidence was deliberately devoid of detail. The evidence of his mother ought not to leave the court with a reasonable doubt. The complainant's evidence was detailed and had the ring of truth.
FACTUAL FINDINGS CONCERNING FACTS IN ISSUE
112I first turn to the evidence of R.M.D. I take into account that he was labouring under some degree of cognitive impairment which could have impacted to some degree his ability to process, recall and articulate his evidence. No specific medical evidence was called to provide details but he did appear to be very slow and deliberate in his presentation.
113I take into account R.M.D.'s criminal record, particularly that fact that he has a record for a crime of dishonesty. It is somewhat dated however and has had little impact on my assessment of his credibility.
114I also take into account the difficulty any Defendant has in having to explain an otherwise uneventful day from nearly seven years earlier. He was being asked to reconstruct or explain an incident he states never took place. As recently stated by the Ontario Court of Appeal, this can present a challenge:
In rejecting the appellant's denial as one of "convenience", the trial judge did not acknowledge that it is very difficult for anyone to prove a negative. To the contrary, he seemed to require the appellant to interpret "what may have happened", i.e. to effectively speculate about why the complainant said what he did. Nor does the trial judge explain how someone who denies that anything happened could give an "interpretation of what may have happened."
115Notwithstanding those observations I have grave concerns with his evidence. It is not a situation where he has no memory at all of the events. Instead his evidence was very concrete and limited. He simply states he helped build the fence and stayed outside all day while his mother was inside looking after the children. He cannot recall D.P. being there. He cannot even recall whether the fence building project took more than one day. Interestingly, when questioned on how long the project took, he did not vary his response and stated that he helped R.P. outside on however many days it took. This suggests his evidence was more rote than recollection. It also left the impression that he was attempting to distance himself from any opportunity to interact with the complainant.
116The concerns over the very limited scope of his evidence are amplified by the fact that it appears that his memory has been significantly influenced by discussions with his mother. For example in testifying he was certain that his mother was present when the fence was being constructed. However in his statement to police he advised that he did he did not know if his mother was there. He explained the discrepancy by stating that he called his mother after the interview and she told him she was there. The evidence of M.E. is the cornerstone of R.M.D.'s defence. His apparent lack of an independent recollection of whether she was even present is a major concern even allowing for his cognitive challenges.
117In his statement to police he could not even recall whether his own children had been born at the time of the incident. His mother assisted him with this evidence as well. This underscores his apparent inability to recall something which should be simple to remember. It also is troubling, as he has placed considerable emphasis in his evidence that his mother was taking care of his children inside the house.
118As a consequence, it is difficult to place any weight on his testimony alone. It must be considered in light of all of the evidence and in particular the evidence of M.E. She testified that there was no possibility that either R.M.D. or D.P. went down to the basement. From her perch in the kitchen/dining area she had an unobstructed view of the backyard and the open stairwell that led to the basement. She also stated that R.M.D. stayed outside to work on the fence for the entire day except for the occasional bathroom or beverage break. She spent the entire day reading in the kitchen. As such she can state unequivocally that the incident with R.M.D. could not have happened as no one ventured down to the basement that day. In discussing the matter with R.M.D. after he was arrested she confirmed that she did not tell him where at the residence she was- whether it was inside or outside. R.M.D. states that his mother was inside all day. Since he has no independent memory of his mother being there at all it is striking that he was so confident that she was inside the residence. She must have provided this perspective to him. It again suggests that their evidence is tainted by collusion.
119It is clear that she influenced R.M.D.'s recollection of events. After he was interviewed by police she did tell him that she was present at the time of the incident. She did leave open the possibility that she told him what his activities were that day. At the very least she coloured the evidence provided by her son. Even if this was not done deliberately, their evidence at the very least must be considered unreliable. Given the very limited scope of his evidence her influence was considerable. [See R v M.B. [2011] ONCA 76.]
120In giving this portion of her evidence I found that she was evasive and non-committal. She claimed to be confused by simple questions aimed at clarifying what she had told her son. I am concerned that she was hedging her answers.
121It is implausible that she sat fixed to one spot all day. She is confident in this position but was unable to provide details on any other aspects of the day. There was no reason to, since the fence building project was otherwise uneventful. It took place over several days six years prior to her son's arrest.
122She said she had "very limited contact" with D.P. prior to the incident. There were only two other visits. One took place when D.P. was five years old. The other was from an uncertain date when R.P. came to speak to her about a personal situation and he brought D.P. with him. R.M.D. was not present. D.P. went to the basement to play with R.M.D.'s two children. This suggestion that contact was minimal is surprising as prior to the incident it seems that M.E. and R.P. had enjoyed a positive relationship. He visited on a number of occasions to help her with household tasks. It seems reasonable that he would have brought D.P. with him on some of those occasions. Even R.M.D. agreed that R.P. had brought D.P. with him to speak with her and to do tasks other than the fence building. For example he mentioned that R.P. had to "fix the lights or whatever". This strongly suggests that D.P. was a far more frequent visitor than M.E. admitted to. She seemed to be creating the strong impression that R.M.D. had little or no prior contact with D.P.
123R.M.D. placed particular emphasis on the tasks that he was focussed on in relation to the fence building. He says he was digging posts that day, placed a post in the holes and filled them with cement. M.E. makes no mention of that and instead claims that R.P. had come by to work on a gate for the deck itself so the children would not be able to fall off. This inconsistency reinforces the view that the day was otherwise uneventful.
124The Defendant advised that his children slept in one bedroom and his mother in another. He slept on the couch in order to be close to them. He rejected the notion that it made sense for him to sleep on the mattress in the downstairs bedroom. He was adamant that it was not set up as a bedroom. The idea that he has been sleeping on a couch for many years is notionally plausible. Yet he made no mention of the fact that he had slept in the basement with his girlfriend for several months in 2010. This is a significant omission. It strongly suggests that he was trying to minimize any connection he may have had to the basement.
125I also reject M.E.' testimony that the downstairs bedroom had been filled with "stuff" or "junk" for many years. She described some of the contents and emphasized the poor condition of the room. For example she described an old box spring that was propped against a wall. This might be inconsequential but for the fact that R.M.D. agreed with the Crown that the item was instead a "perfectly good" mattress. This inconsistency illustrates the tendency of M.E. to embellish her evidence. I do not accept her evidence that the downstairs bedroom was configured as she states.
126I have examined the photograph introduced as Exhibit "8". The photograph was taken in February 2013 and purports to depict the basement bedroom as it appeared in 2006. The photograph provides little assistance for although it does appear to show the bottom of a box-spring, its condition is impossible to determine. In any event since the photograph was taken nearly seven years after the alleged incident I am not able to rely upon it as accurately depicting of the condition of the room at that time.
127M.E. was certain that D.P. had visited after the incident. She stated that a couple of years after 2006, around Christmas, R.P., D.C.1 and D.P. dropped off Christmas gifts and stayed for a couple of hours. She does not believe R.M.D. was present. However, this incident was never put to any of the other four witnesses who testified. I give it little credence.
128As a consequence I do not believe the testimony of the Defendant nor does it leave me with a reasonable doubt. The collusion between The Defendant and his mother fatally compromise their reliability. The evidence of the Defendant in the context of the other evidence is also not credible. M.E. in particular was evasive, argumentative in a disingenuous way and prone to exaggeration.
129Nevertheless, I must turn to whether the Crown has proved the offences beyond a reasonable doubt based on the whole of the evidence which I do accept.
Prior Consistent Statements
130At the commencement of the trial the Crown advised that it would be eliciting prior statements from the complainant in anticipation that there may be defence suggestion of recent complaint. Mr Negro advised that the defence was not making that proposal. However there were other issues such as animus which would be explored. If the statements were permitted to be introduced he would be cross-examining upon them.
131Watt, JA recently summarized the law in this area:
34 Evidence of the prior consistent statements of a witness who testifies in trial proceedings is generally held to be inadmissible. The rule rests on sound policy considerations. Evidence of a witness' prior consistent statements lacks probative value, is self-serving, superfluous in light of the witness' testimony, and constitutes hearsay when adduced for the truth of their contents: R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788, at para. 36. Despite these concerns, however, evidence of spontaneous, exculpatory statements made by an accused upon or shortly after arrest may be admitted to show the accused's reaction when first confronted with the allegation, provided the accused testifies and thereby exposes himself or herself to cross-examination: R. v. Edgar, 2010 ONCA 529, 260 C.C.C. (3d) 1, at para. 24.
35 The general rule that prohibits introduction of prior consistent statements of a witness is not absolute. The rule yields when a party alleges that a witness has recently fabricated his or her account of an event about which she or he testifies.
36 A recent fabrication is one made up after the event about which the witness testifies: R. v. Ellard, 2009 SCC 27, [2009] 2 S.C.R. 19, at para. 33. The fabrication need not be "recent", in the sense of proximity to the witness' testimony, but it must post-date the event that is the subject-matter of the witness' testimony: R. v. Stirling, 2008 SCC 10, [2008] 1 S.C.R. 272, at para. 5.
37 An allegation of recent fabrication need not be made expressly. It is enough that, in light of the circumstances of the case and the conduct of the trial, the apparent position of the opposing party is that there has been a prior contrivance: Stirling, at para. 5; and Ellard, at para. 32. That said, it is not sufficient that contradictions appear or are exposed in the testimony of the witness in order for the recent fabrication exception to be engaged: Ellard, at para. 33.
38 An allegation of recent fabrication allows the party who called the witness to introduce evidence that the witness made a statement or statements consistent with his or her testimony, prior to the existence of a motive or of circumstances that led to the fabrication: Ellard, at para. 33; R. v. Garofoli (1988), 1988 CanLII 3270 (ON CA), 41 C.C.C. (3d) 97 (Ont. C.A.), at p. 145, reversed on other grounds, 1990 CanLII 52 (SCC), [1990] 2 S.C.R. 1421; and R. v. Campbell (1977), 1977 CanLII 1191 (ON CA), 17 O.R. (2d) 673 (C.A.), at p. 687. In some instances, evidence of these prior statements may be admitted in reply.
39 As a general rule, limiting instructions are required where prior consistent statements have been admitted to rebut an allegation of recent fabrication. These instructions explain that consistency and accuracy are not the same thing, and that the prior statements can only be used to rebut the allegation of recent fabrication, not to support the fact at issue or the general reliability of the impeached witness: Ellard, at paras. 31 and 42. However, the requirement of limiting instructions about evidentiary use of prior consistent statements also yields on occasion, as for example, where
i. the defence itself relies on the prior statements;
ii. the prior statement is not offered to prove the underlying facts and;
iii. the concerns over self-corroboration and bolstering the reliability of the witness are not present.
Ellard, at para. 43
132The complainant was challenged during cross-examination as to whether she had a specific bias against the Defendant or his mother. She denied any knowledge of the circumstances which could have precipitated this motivation.
133It is clear that the complainant did give an account to her father and D.C.1 in the days after the alleged incident. This does not prove those complaints to be true, merely that they were made soon after the events. They also assist in the unfolding of the narrative as it provides some context for understanding the actions of the parties. For example her revelation that R.M.D. did something does not in any way prove that it happened, but it explains the decision of R.P. and D.C.1 not to take D.P. back to R.M.D.'s residence.
134There were disagreements amongst the Crown witnesses in terms of the content of the disclosure in the days following the alleged incident. Counsel cross-examined extensively in this area as he was entitled to. However, in so doing there is always a risk that the credibility of the complainant is not weakened. A careful review of her evidence leads one to conclude that she was generally consistent in the account she says she provided to her father and D.C.1. As I discuss in more detail below I do not believe that D.P. ever returned to the E.'s residence following the incident. Although the reactions of her father and D.C.1 are not evidence of the truth of the allegations, their dramatic change in behaviour strongly suggests that they were told more than they now recall.
135D.P. testified that after she told her father on the day after the incident, he advised her not to tell her mother. She was also concerned that her mother might somehow blame her. R.P. made no mention of this exchange. The police were not called for almost six years. The delay itself as well as the evidence of M.S. suggests that he did dissuade her from disclosing every detail of the incident. His motivations for doing so are unclear, nevertheless I give less weight to his recollection of the details of the conversations with his daughter both at the time of the incident and at the time it was reported to police in 2012.
136I do accept his evidence that in 2012 she appeared to him to be nervous and embarrassed and it was his impression that she did not want to say too much. In retrospect he recalled his daughter as being scared at M.E.'s house when she came outside the house and did not want to go back in. I accept D.P.'s explanation for the process and piecemeal nature of the disclosure.
137There were some inconsistencies in D.P.'s account. For example she advised the court that while in the bedroom the Defendant had placed his hands on her upper body and worked his way down. In her previous statement to police she described similar actions but he had started at her thighs and worked his way up her body. R.P. states that it is the first version he was told of in 2012. I have listened to her account several times. She did not appear to be exaggerating or embellishing the story she told police. I focus on the content of the evidence only. Her demeanour was not a factor in this process as that is a notoriously unreliable basis for assessing credibility.
138Not only are there inconsistences in her evidence, she cannot recall some details of the incident such as what R.M.D. was wearing, the year time of year, what happened outside with respect to the building of the fence, whether she stayed for dinner or when they left. She had no memory of having lunch there. She was vague in her description of the basement other than the bedroom in which the incident allegedly took place.
139It is telling though that she was able to provide any details at all. In a room which was supposed to be full of "junk" and "stuff" she was able to describe the window, a bed and the general configuration of the room. Although she had been in the basement before, the evidence of M.E. would suggest that this was a brief visit at least six years prior to the police involvement. There appears to be no reason why she would recall that portion of a remote insignificant visit unless she was describing the room as it was actually configured.
140I accept the evidence of R.P. and D.P. that she occasionally accompanied him to the residence. They had a positive relationship with M.E. and R.M.D. prior to June 2006. This seems logical and is supported by the fact that M.E. requested her ex-husband's help on an ongoing basis, including the fence building project. There seems to be no particular reason why D.P. would not have visited many times before or have been prohibited from venturing into the basement. She would have had no reason to have been concerned about going into the basement. She was at the residence of a woman with whom she had a close relationship. I accept she accurately described the basement bedroom as it was in 2006. This conclusion provides a framework for assessing her account of the events and bolsters her credibility.
141Since I accept that she had been in the home on many previous occasions there is also no logical reason for her not to have interacted with R.M.D. RMD was living continuously at the residence and it is logical that he would have been home with his children during times when D.P. was present. There is no reason to think that they would not have spent time on the living room couch watching TV together. I accept that they were doing just that in the moments preceding the alleged incident.
142For the foregoing reasons I accept the evidence of the complainant. She described an incident which involved the touching of her body by the Defendant. In the context of her age, the words spoken and the manner of the touching I find that each offence has been proved beyond a reasonable doubt. Although she reversed the order in which the touching took place she was consistent in describing the overall incident itself.
CONCLUSION
143In conclusion, after careful consideration of the evidence of the accused and in evaluating his evidence in accordance with the principles set out in R. v. W.(D.) the evidence of the accused is rejected for the reasons specified.
144In addition, I am satisfied on the evidence as a whole that the Crown has proved each element of the offences beyond a reasonable doubt.
145There will therefore be a finding of guilt with respect to all of the charges.
M.E. Graham June 27, 2013